The Establishment Clause: Religion and the First Amendment

Book Description

Leonard Levy's classic work examines the circumstances that led to the writing of the establishment clause of the First Amendment: 'Congress shall make no law respecting an establishment of religion. . . .' He argues that, contrary to popular belief, the framers of the Constitution intended to prohibit government aid to religion even on an impartial basis. He thus refutes the view of 'nonpreferentialists,' who interpret the clause as allowing such aid provided that the assistance is not restricted to a preferred church.

For this new edition, Levy has added to his original arguments and incorporated much new material, including an analysis of Jefferson's ideas on the relationship between church and state and a discussion of the establishment clause cases brought before the Supreme Court since the book was originally published in 1986.

Customer Reviews:

Church versus State.......2005-11-29

The confrontation between religious and secular values is one of the hottest issues that will confront the Supreme Court in the twenty-first century. Surprisingly, few Americans are schooled in the origins of the First Amendment and the thinking of James Madison, Thomas Jefferson, and other founding founders in including this clause as part of the Bill of Rights. A good portion of the volume discusses this extremely relevant topic. We learn that Madison was instrumental in the passage of the Establishment Clause. He saw it as a limitation on the power of Congress to coerce individuals to worship God in any manner inconsistent with their conscience, indeed to enact any law that involved religious topics.

The book continues its discussion of efforts to promote prayer and religious doctrine through government backing by examining leading 19th and 20th century Supreme Court cases. I learned that the celebrated liberal Justice William O. Douglas wrote opinions that weakened the wall of separation; he authored conservative decisions that called for the encouragement of religion by the state...(I expected the opposite). Every informed citizen probably should read this book to discover why the establishment clause is an essential pillar of American liberty.

Argued Strongly and Successfully.......2005-01-01

This is a relatively short book by the noted legal historian and constitutional scholar Leonard Levy. Somewhat polemical in nature, this book is concerned primarily with rebutting the 'original intention' approach to the establishment clause of the First Amendment. Written originally in response to Reagan era claims that the establishment clause permitted non-preferential aid to religion, this book maintains its relevance as this claims continue to be made by a variety of conservative politicians and legal theorists. The non-preferentialist approach states that the establishment clause authorizes federal aid to religion so long as it is not preferential and specifically avoids a single church. The opposite, separationist approach, advocates the so-called "wall" between church and state with the federal government prohibited from aiding religion. Levy systemically examines the nature of religous establishments at the time of the formulation of the constitution, the attitudes of the Framers towards separation, the rationale for seperation, and the basic logic of the Bill of Rights (a subject on which Levy is an established authority). The result is a devastating critique of non-preferentialism based on original intent. Levy shows well that religous establishments in several colonies/states were plural in nature, so establishment can't refer just to favoring one religion. In line with a great deal of other scholarship, he shows that the framers were definitely separationist in orientation. With other scholars, Levy stresses that separationism was advocated by a coaltion of relatively secular intellectuals like Madison and Jefferson and a group of devout churchmen like the Baptists Isaac Backus and John Leland, all of whom felt that separation was necessary to safeguard religion. Finally, he scornfully but correctly exposes the basic weakness of arguing that the establishment clause authorizes non-preferential aid by pointing out that the basic thrust of the Bill of Rights is to constrain Federal power, not to enumerate its powers. Levy's arguments are presented well and are convincing. While non-preferentialism may one day be a viable policy, its advocates will have to search elsewhere for a constitutional justification.
The last couple of chapters of the book are devoted to related topics. Levy has an effective chapter on the inconsistencies of Supreme Court rulings on the establishment clause. He characterizes well the confusion engendered by these often unclear rulings and makes a very good point that the contradictory rulings and often poorly argued decisions are contributing factors to social discord on this issue. Part of this chapter, however, is a bit confusing because Levy wanders into a general discussion of originalist interpretation. This prefigures one of his later books but is not strictly germane to the topic of this book.
Levy also has some interesting comments on his attitude towards separation. While the logic of his arguments leads to strict separationism, he reveals himself to be a modest accomodationist with considerable respect for religion and its important place in American life.

Leaks in the Church/State Wall Are OK?.......2001-06-18

With attempts by our current President to allow federal funds to go to religious charities, a better understanding of the history and meaning of the First Amendment is desparately needed. One could hardly be better qualified to give us such an education than Leonard W. Levy in his book on the Establishment Clause.

In his book, Levy refutes the nonpreferentialists' claim that the First Amendment clause, "Congress shall make no law respecting an establishment of religion," merely prohibits Congress from providing preferential aid to one church. If "an establishment of religion" meant only single-church establishments, Congress would only be prohibited from exclusively benefiting one church but not prohibited from aiding religion impartially. But, as Levy points out, history does not support the nonpreferentialists' interpretation.

Although the five southern colonies did have exclusive Anglical establishments, the colonies of New York, Massachusetts, Connecticut, and New Hampshire came to have multiple religious establishments, and, indeed, the colonies of Rhode Island, Pennsylvania, Delaware, and New Jersey never had establishments of any kind. After the Revolution, opposition to establishments increased, resulting in states having to replace their exclusive or dual establishments or even ending their establishments altogether. Thus, the historical fact of multiple establishments of religion contradicts the nonpreferentialists' interpretation that "an establishment of religion" referred only to single-church establishments, and, therefore, does not support their claim that the establishment clause only prohibits Congress from making laws preferring one church. Nor is their interpretation supported by the debates between the Federalists and Anti-federalists.

Anti-federalists feared loss of liberty and pressured Federalists to accept recommendations for amendments to the new Constitution, which included protection of religious liberty. But Federalists countered that such amendments were superfluous because, as Levy succinctly restates the argument, "[T]he unamended Constitution vests no power over religion." Moreover, Madison stated in an October 17, 1788 letter to Jefferson that these amendments ought to be "so framed as not to imply powers not meant to be included in the enumeration." Thus, Levy concludes, "To argue, as the nonpreferentialists do, that the establishment clause should be construed to permit nondiscriminatory aid to religion leads to the impossible conclusion that the First Amendment added to the powers of Congress even though it was framed to restrict Congress. It is not only an impossible conclusion; it is ridiculous."

From his demolition of the nonpreferentialists' interpretation of the establishment clause and his statement in the Preface that his "sympathies are clearly with the separationists," one might conclude that Levy is a strict advocate of an impregnable wall of separation between church and state. However, he is not. Of zealous separationists who interpret every crack in the wall as disaster, Levy says, "[They are] like Chicken Little, screaming, 'The wall is falling, the wall is falling.' It really is not and will not, so long as it leaks just a little at the seams. If it did not leak a little, pressure on the wall might generate enough force to break it."

Examples of leaks which Levy feels need not be repaired are the Supreme Court beginning its sessions with "God save this honorable Court," the money motto "In God We Trust," the words "under God" in the Pledge of Allegiance, tax-supported chaplains for military and legislative bodies, etc. Although Levy is aware of the concern of separationists that "big oaks grow from small acorns," he invokes for "trivial" leaks an aphorism which was also advocated by Madison: "De minimis non curat lex" ("The law does not bother with trifles"). A more controversial leak, however, is Levy's advocacy of tax aid for parochial schools.

Although he agrees that the "claim of 'double taxation' is a misnomer," he asserts that the Supreme Court "ought to relieve the burden of so called double taxation on those who pay to send their children to private school." He also says, "If proper restraints exist on the funds for parochial schools so that tax monies are not spent for religious purposes, and the aid rendered is comparable to the value of the secular education provided by the schools, fairness seems to be on the accomodationist side." To say the least, Levy's leaky wall is problematic. It is impossible that parochial school aid would not set free additional dollars for sectarian indoctrination, and the idea that, with "proper restraints," taxpayers' dollars could be secure from misuse is too good to be true.

In the course of discussing establishment-clause cases, Levy amuses his reader with some pot shots at the High Court. He says, for example, that "the Court has managed to unite those who stand at polar opposites on the results that the Court reaches: a strict separationist and zealous accommodationist are likely to agree that the Supreme Court would not recognize an establishment of religion if it took life and bit the Justices."

Book Description

Francis J. Beckwith asks whether teaching Intelligent Design in public schools would be constitutional, in light of the Supreme Court's decision in Edwards v. Aguillard.

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A Noted Scholar Explains Why Intelligent Design is Constitutional.......2006-06-22

Legal scholar Francis J. Beckwith recounts the legal history of court battles over the teaching of biological origins. Though many thought that the landmark Supreme Court case Edwards v. Aguillard would permanently settle these questions by ruling creationism unconstitutional, Beckwith observes that intelligent design poses a new challenge to legal scholars. Beckwith, who has published about teaching intelligent design in law journals such as Harvard Law Review, provides a thorough treatment of the subject.

After recounting the history of cases which involved the "Creator in the courtroom,' Beckwith turns to analyzing intelligent design. Under various legal definitions of religion, Beckwith contends that design is not religion as conventionally understood because it derives its support from empirical data and philosophical arguments. Intelligent design, Beckwith explains, is distinct from creationism, for it derives its support from the scientific argument rather than religious texts such as the book of Genesis. Design also fails other legal tests for "religion," such as the "parallel position test" because it does not function as a religion in the lives of its proponents. While design may come to conclusions shared by some religions, this does not necessarily make it "religion" for legal purposes. After all, Beckwith observes, courts have acknowledged that "a decision respecting the subject matter to be taught in public schools does not violate the Establishment Clause simply because the material to be taught `happens to harmonize with the tenets of some or all religions.'"

Finally, Beckwith argues that intelligent design does not fit under the Edwards test for religion because it lacks a historical connection with the Scopes Trial and other Genesis-inspired anti-evolution endeavors. Teaching about intelligent design could be justified on the basis that it improves the religious "neutrality" of a curriculum.

Beckwith provides a deep and thorough treatment of the legal arguments raised by critics of teaching design in public schools. Those interested in studying the relevant technical legal arguments surrounding the teaching of intelligent design will require an understanding of Beckwith's well-reasoned position explained in this book.

A well-informed, even-handed assessment.......2004-11-11

Francis Beckwith's LAW, DARWINISM, AND PUBLIC EDUCATION does an excellent job of sorting through and analyzing the relevant court cases and legal arguments concerning the teaching of creation/evolution in public schools. With the emergence of the Intelligent Design (ID) movement, a much stronger and more sophisticated case can be made, both empirically and philosophically, for the plausibility of a Creator and Designer. The strength of these arguments cannot justifiably be barred from public education curricula.

Beckwith suggests a point I would like to underscore: the "creation vs. evolution" debate is often a red herring, masking the more fundamental metaphysical issues at stake. First, there are theistic evolutionists (Howard Van Till calls this view "fully gifted creation"), who believe that God has been working through the evolutionary process in the unfolding of His purposes. Darwin himself started out believing this. In the early editions of *The Origin of Species*, Darwin himself spoke of "laws impressed on matter by the Creator" and "life, with its several powers, having been originally breathed by the Creator into a few forms or into one" (Ch. 15, "Recapitulation and Conclusion"). Later, Darwin apparently gave up on his faith based, not on any scientific evidence, but due to theological and philosophical assumptions (which turn out to be deeply problematic: see Cornelius Hunter, DARWIN'S GOD [Brazos Press]). So the ultimate issue is not "creation vs. evolution" but "naturalism vs. supernaturalism." Whether we should prefer naturalistic explanations over supernaturalistic ones is a philosophical matter, not a scientific one.

Second, biological evolution presupposes (a) the emergence of the universe a finite time ago and (b) its delicately-balanced conditions for life. Without these, the process of evolution could not even get started. One could add that (c) simply because conditions are conducive to the emergence of life, this by no means guarantees that non-living matter will produce living organisms. The emergence of first life itself is a huge difficulty for the naturalist (see Bradley, Olson, and Thaxton, THE MYSTERY OF LIFE'S ORIGIN* [Philosophical Press])..

To underscore the constitutional legitimacy of ID in public education, one could make the minimalist case for bracketing the issue of biological evolution itself and first focusing specifically on a Creator and Designer as the best explanation for (a) the emergence of the universe from nothing a finite time ago and (b) the "Goldilocks effect"--that the many interlocking conditions for biological life are "just right." Even if evolution has taken place, the explanatory context of a powerful and intelligent Being makes much better sense of (a) and (b) than its naturalistic alternatives. Once these are in place, only then could evolution get going.

I heartily recommend Beckwith's refreshing, insightful book and wish it all the success it deserves.

It is "Your Daddy's Fundamentalism".......2004-06-29

Next to sex education, evolution is the most controversial school subject. This book makes the modest argument that an idea called "Intelligent Design" should be taught in public schools alongside evolution. The author sets out a framework for analysis which unfortunately leads to the opposite conclusion, failing to achieve its modest goal. I read it because it received a glowing review in the Harvard Law Review, entitled, "Not Your Daddy's Fundamanetalism."

The author's argument is that various court cases rejected creationism in public schools because it violated the First Amendment's Establishment Clause. The author argues that Intelligent Design should be treated differently. First it is not the "New Earth" creationism, which was rejected by the courts. Furthermore, attempts by various courts to define "science" fail on philosophical grounds, so there is no philosophical preference between evolution and Intelligent Design. Methodological Naturalism, the basis for evolution is not a scientific theory but a philosophical outlook no more or no less valid than Intelligent Design's outlook. The author does not conceal the fact that he objects to evolution because it "cannot account for the existence of the universe, morality rationality," and therefore it should be rejected on philosophical grounds as the overarching scientific theory of biology.

According to the author, the 1987 U.S. Supreme Court Case, Edwards v Aguillard, struck down the creationist law based on (1) the historical continuity with the famous Scopes trial and other well publicized creationist-evolutionist debates throughout the twentieth century; (2) How closely the curriculum content parallels the Genesis story or that curriculum is proscribed because it departs from Genesis; (3) the motives of the statute's supporters; and (4) Whether the statute was a legitimate means to achieve an appropriate state ends. The author attempts to argue that the analysis of these points applied to "Intelligent Design" leads to a different result.

The author's suggested framework is plausible, but when applied to the facts as recognized by the author, himself, it fails. As a general proposition, how do we determine whether any idea is to be presented to students in an elementary school science class? A list of candidates could include atomic theory, Newtonian physics, evolution, relativity, quantum mechanics, yeti, astrology, ES, geocentricism, creationism and Intelligent design. The Author makes the incorrect and novel idea that a discipline, such as science or medicine, cannot define itself. Only philosophy, not coincidentally the author's area of expertise, is qualified to sort out which of the above ideas qualify as true "science."

In McLean v Arkansas, the trial judge determined that "science" had several characteristics. Application of the McLean criteria would quickly eliminate yeti, ESP creationism and Intelligent Design from the above list, so the author suggests that "demarcation issues' prevent a trial judge from reliably distinguishing between "real science" and imposters. Beckwith especially relies on the methodology of Larry Laudan, who suggests that the demarcation is unsolvable, i.e., it is not possible or desirable to distinguish between science and non-science. Laudan however, completes the argument that Beckwith does not-Laudan holds that some ideas are demonstrably scientifically wrong. Laudan holds that it is possible to determine what those ideas are, and Intelligent Design is one of them. I don't know why the author did not refer to Laudan's specific rejection of Intelligent Design.

Amazingly, at the time he wrote the book (2002), the author conceded that there was insufficient scholarly support for Intelligent Design. (p. 43, fn. 125). Since 2002, that situation has become worse, not better, according to the author, who, as of March 2004, holds that he does not favor teaching intelligent design in public schools because of a lack of scientific documentation for the theory (http://www.moteworthy.com/archives/000242.html). This is an amazing admission in light of the myriad of footnotes citing nearly all the Intelligent Design literature as of 2002, including the collected works of Michael Behe, Philip Johnson and William Demski. At this point, Beckwith's argument has to be re-phrased to, "Is it unconstitutional to teach incorrect ideas as established science?" After all, a law may be stupid without being unconstitutional.

Although Beckwith (and Scalia) may disagree, a court is entitled to ask why on earth anyone would want to teach a subject such as intelligent design (or ESP) with no scientific evidence in support and vast amounts contradicting it. (Beckwith's analysis of evolution is cursory, incorrect and irrelevant to his argument). It is reasonable to suggest that the idea is a sham in an effort to inject religious creationism into science class. If so, then the four Edwards criteria make sense. Reference to the history of evolution /creationism debates, the religious motivations of Intelligent Design proponents, their extra-scientific comments, their refusal to address the evolution's scientific evidence and predictive powers and legislative history would all be relevant under the Edwards analysis. Applying the Edwards criteria to Intelligent Design leads to the conclusion that it is a sham and should be treated the same as all other forms of creationism.

Teaching about Intelligent Design in a philosophy, religion or history course would be a different matter entirely.

Well-written book with a modest conclusion.......2004-05-10

I've read virtually all of the law reviews written on the constitutional status of presenting alternative theories to evolution in the publics school classroom. Francis Beckwith's modest conclusion falls just slightly to the right of assessments made by other respected legal scholars like Kent Greenawalt and Jay Wexler. It is his contention that an alternative theory like Intelligent Design could probably survive an Establishment Clause challenge whereas the Genesis-based creation science presentation has not. Greenawalt and Wexler aren't sure and tend to think ID might not survive an Establishment Challenge.

As far as quality goes, the book is well-written and researched. It also display's Beckwith's strength as a philosopher as he parses arguments. The bottom line is that Beckwith offers a very modest conclusion. Intelligent Design may someday be offered as an alternative theory of origins in public school and may survive an Establishment Clause challenge largely due to its lack of allegiance to any theological tradition. The theory makes no attempt to offer an explanation of who or what provides the agency of design

Beckwith's book is a valuable contribution to the literature estimating the constitutional status of intelligent design. If a court case does arise, his book will certainly be part of the material considered.

"Don't Criticize What You Can't Understand".......2004-05-09

Too many people reviewing this book don't get it. The Daubert case flap is an illustration. Beckwith does not say whether he agrees or disagrees with Daubert. All that he is saying is that Daubert, as precedent, helps the cause of ID if a judge were to require a high level of scrutiny as to what counts as "science." However, he does point out that ID folks will likely not have to rely on Daubert because the issues they raise are found throughout the peer-review science literature (though mostly NOT raised by ID advocates) and have been published in peer-reviewed monographs, anthologies, and academic journals that deal with the philosophy of science.

Beckwith's book is a brief for the permissibility of teaching ID in public schools. As any good law student knows, a brief is not meant to critique the plausibility of the opinions it cites in support of its case. So, if Beckwith had not consulted or employed Daubert, then it would have been a bad brief.

The negative reviewers, whose motives are impure, will not tell you what I just told you. Their concern is "spin" and not accuracy.

Book Description

Church-State Constitutional Issues explores the often-debated and always topical issue of the relationship between church and state as outlined in the First Amendment. Donald L. Drakeman takes an interdisciplinary approach to examine the meaning of the establishment clause, demonstrating how the studies of law, religion, history, and political science provide insight into this relationship, which, since the nation's inception, has been difficult to define. The study first chronicles the Supreme Court's decision regarding the interpretation of the establishment clause from the early 19th century to the present. This legal history is subsequently viewed from a cultural perspective as Drakeman traces both the background of the First Amendment and how the relationship of church and state has developed on its journey through the court system. The volume moves towards further understanding of this complex issue as it concludes with a new interpretation of the establishment clause derived from previous information as well as further legal and political interpretive material.

The Establishment Clause and ''The City On A Hill''

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The Establishment Clause and ''The City On A Hill''
Frank Jr Schneider
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The Establishment Clause-
Leonard W. Levy-
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ASIN: B000O6D778

Freedom from Federal establishment: Formation and early history of the first amendment religion clauses

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Freedom from Federal establishment: Formation and early history of the first amendment religion clauses
Chester James Antieau
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Sum and Substance of Constitutional Law
Lawrence Sager
Manufacturer: Josephson Kluwer
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5 C-90 audio cassettes//Please note: B side of tape #5 is blank

Teaching constitutional issues with scripted trials search and seizure, freedom of expression, and the establishment clause, volume 1 (SuDoc ED 1.310/2:425114)

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Teaching constitutional issues with scripted trials search and seizure, freedom of expression, and the establishment clause, volume 1 (SuDoc ED 1.310/2:425114)
Robert S. Leming
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The Establishment of Religion Clause: The First Amendment (Bill of Rights)

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The Establishment of Religion Clause: The First Amendment (Bill of Rights)

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Book Description

"Congress shall make no law respecting an establishment of religion...." - The Establishment Clause of the First Amendment

Unlike many areas of constitutional law, there is very little settled doctrine interpreting the Establishment Clause. Not only is the case law in flux and inconsistent, but scholars disagree on virtually every issue addressed in legal commentary. Put simply, there is no consensus on what the Establishment Clause means.

Because this is such a contested area of constitutional law, most books addressing the Establishment Clause present a particular point of view, theory of interpretation, or doctrinal approach. Editor Alan Brownstein adopts a different approach in this excellent anthology of essays on this important clause of the First Amendment. Recognizing the range and depth of intellectual tension that underlies this constitutional mandate, Brownstein addresses both the historical debate surrounding the original understanding of this constitutional provision as well as current controversies regarding its interpretation and application by the courts. The reader will thus find a balanced account of the competing perspectives on core questions. The book is organized around three central areas. First, several articles provide divergent accounts of the history of the Establishment Clause from pre-Constitutional colonial America to the adoption of the Fourteenth Amendment. Second, various perspectives are presented on government endorsement of religious messages, typically through state sponsored religious displays (such as a Christmas crèche) or state directed prayer. Third, a range of viewpoints addresses the issue of government funding of religious institutions providing educational or social services, either through indirect aid (vouchers) or direct grants.

An introduction to each section provides a concise overview of the development of the case law so that readers will be familiar with key rulings and legal tests the courts have employed.

Book Description

This digital document is an article from Trial, published by Association of Trial Lawyers of America on December 1, 1995. The length of the article is 1935 words. The page length shown above is based on a typical 300-word page. The article is delivered in HTML format and is available in your Amazon.com Digital Locker immediately after purchase. You can view it with any web browser.

From the supplier: The US Supreme Court's decisions in 'Rosenberger v Rector & Visitors of the U of VA' and in 'Capitol Square Review and Advisory Board v Pinette' could undermine the Constitution's Establishment Clause, and certainly narrow it. Those rulings do not overturn the 'Lemon v Kurtzman' decision and the test created therein, but they transform Establishment Clause questions into free speech ones. This raises the question of when a religious content of speech may be used for any governmental determination.

Citation Details
Title: Free speech or religious freedom: revisiting the Establishment Clause.
Author: Erwin Chemerinsky
Publication: Trial (Magazine/Journal)
Date: December 1, 1995
Publisher: Association of Trial Lawyers of America
Volume: 31 Issue: n12 Page: 16(4)

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